People v. Lewis

2022 IL App (5th) 220004-U

Opinion

2022 IL App (5th) 220004-U NOTICE NOTICE Decision filed 09/06/22. The This order was filed under text of this decision may be NO. 5-22-0004 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Peti ion for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Macon County. ) v. ) No. 17-CF-478 ) DUAN LEWIS, ) Honorable ) Thomas E. Griffith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.

ORDER

¶1 Held: The trial court lacked jurisdiction of defendant’s “motion to correct mittimus” when it was filed more than 30 days after defendant’s guilty plea and sought to change the judgment. Accordingly, we grant OSAD’S motion for leave to withdraw and dismiss the appeal.

¶2 Defendant, Duan Lewis, appeals the trial court’s order dismissing his motion to correct the

mittimus. Defendant’s appointed attorney on appeal, the Office of the State Appellate Defender

(OSAD), concluded this appeal lacks merit. Accordingly, OSAD filed a motion to withdraw as

counsel for defendant (see Pennsylvania v. Finley, 481 U.S. 551 (1987)) along with a brief in

support of the motion. OSAD provided defendant a copy of its Finley motion and brief. Although

this court provided defendant with an opportunity to file a response to OSAD’s motion or explain

why this appeal has merit, no response was filed. Having reviewed OSAD’s Finley motion and

1 brief and the record on appeal, we conclude this appeal lacks merit. Accordingly, we grant OSAD

leave to withdraw and dismiss the appeal.

¶3 BACKGROUND

¶4 On November 19, 2018, following the death of his six-month-old daughter, defendant pled

guilty to involuntary manslaughter and aggravated battery of a child in exchange for a sentence of

10 years’ imprisonment on each count. Pursuant to the agreement, defendant was sentenced to two

10-year prison terms, to be served consecutively.

¶5 In 2019, defendant filed a motion to correct the mittimus to reflect that the sentences were

to run concurrently, based on an alleged agreement between defendant and his attorney. At the

hearing on the motion, his attorney confirmed that the plea agreement was for consecutive

sentences and, thus, the mittimus was correct.

¶6 In March 2020, defendant filed a motion for leave to file a late notice of appeal in the trial

court. It does not appear that defendant ever filed a motion in this court as required by Illinois

Supreme Court Rule 606(c) (eff. July 1, 2017). In any event, the trial court denied the motion.

¶7 In November 2020, defendant filed a postconviction petition, which he subsequently

withdrew. In November 2021, defendant filed another motion to correct the mittimus to reflect that

the sentences were to run concurrently, this time asserting that his consecutive sentences violated

the one-act, one-crime rule. The trial court dismissed the motion based on res judicata. Defendant

appealed.

¶8 ANALYSIS

¶9 OSAD asserts that there is no arguably meritorious argument that the trial court erred in

dismissing defendant’s second motion to correct the mittimus. We agree.

2 ¶ 10 It is our responsibility to consider the matter of jurisdiction sua sponte. People ex rel.

Haughawout v. Lantow, 59 Ill. App. 2d 406, 410 (1965). Although a trial court has continuing

jurisdiction to correct clerical errors and other matters of form so that the record conforms to the

actual judgment, it generally loses jurisdiction to modify its judgment or alter a sentence 30 days

after entry of the judgment. People v. Flowers, 208 Ill. 2d 291, 303, 306-07 (2003). Here,

defendant’s November 2021 “motion to correct [the] mittimus” did not seek to correct any clerical

errors or make the record conform to the oral pronouncement of the judgment. Instead, two years

after judgment was entered on his guilty plea, defendant filed a motion seeking to substantively

modify the judgment of consecutive sentences to concurrent sentences. Accordingly, the trial court

was without jurisdiction to consider defendant’s motion, and its dismissal thereof was proper.

¶ 11 Although the trial court did not dismiss defendant’s motion on jurisdictional grounds, this

court can affirm the trial court’s judgment on any grounds appearing in the record. Moody v.

Federal Express Corp., 368 Ill. App. 3d 838, 841 (2006). For the foregoing reasons, we grant

OSAD’s motion to withdraw and dismiss the appeal. See Flowers, 208 Ill. 2d at 307 (where lower

court lacked jurisdiction to entertain a motion, the appellate court should dismiss the appeal).

¶ 12 Motion granted; appeal dismissed.